Under the banner of anti-discrimination, recently established advocacy group Do No Harm (DNH) seeks to eliminate diversity initiatives in healthcare. DNH believes that diversity, equity, and inclusion (DEI) practices are plain discrimination against certain demographics of patients, medical students, and healthcare workers, which ultimately harms patient health outcomes. This belief contradicts current healthcare and public health goals of utilizing diversity-conscious practices to promote equity and mitigate disparities in healthcare. Legitimization of DNH’s mission would further politicize equity in medicine and frustrate preexisting efforts to eliminate health disparities.

Background

Retired physician Stanley Goldfarb founded DNH in 2022 to fight for “the elimination of all discrimination in healthcare.” As a national association comprised of like-minded patients, medical professionals, and policymakers, DNH primarily utilizes media, lobbying, and litigation to target pediatric gender-affirming care and DEI practices.

DNH pursues litigation over initiatives like diversity fellowship scholarships, DEI hiring practices, and clinical care practices specialized to meet the needs of racial and ethnic minorities. DNH believes that tailoring healthcare opportunities to racial minorities, women, and other minority groups discriminates against all other “non-minority” groups. DNH grounds its arguments in various combined readings of Title VI of the Civil Rights Act of 1964, Section 1557 of the Affordable Care Act (ACA), and the Equal Protection Clause of the Fourteenth Amendment. These federal provisions prohibit discrimination on the basis of race, color, ethnicity, and sex, and typically resolve cases involving discrimination against a racial, religious, or gender minority. Spurred by changes implemented by the U.S. Supreme Court, DNH wants to use these federal provisions to protect non-minority groups from discrimination.

In the 2023 decision from SFFA v. Harvard, SCOTUS said that “[e]liminating racial discrimination means eliminating all of it”, reinforcing a statement from an 1886 case that the Equal Protection Clause applies “without regard to any difference of race, of color, or of nationality”. The Court held that colleges and universities are now prohibited from considering race as a factor in admissions. After this decision, groups like DNH began filing claims with intent to expand the scope of SFFA v. Harvard to non-university parties, including medical schools and healthcare workplaces.

Like other industries, healthcare evolved over time and gradually implemented diversity-conscious practices to address identified disparities. Medical schools and healthcare employers established policies and opportunities for traditionally underrepresented groups to enter the medical field. Proponents of health equity believed DEI would lead to more accurate, bias-checked medical opinions and treatment decisions, and that a diverse range of physicians caring for a diverse patient population would improve patients’ overall experience and trust in the healthcare system.

DNH discredits diversity initiatives in its own compiled report, which discusses a lack of hard evidence that diversity-conscious practices improve clinical outcomes and “debunks” the methodology of select pro-DEI research. Advocates of diversity initiatives defend the practice by pointing to records of positive subjective patient experiences and a social need to remedy historical inequity in the profession. DNH opposes those exact ideas: first, that diversity in the healthcare workforce results in improved patient health outcomes; and second, that medicine is a practice where equal opportunity matters more than, or as much as, training “the best and the brightest”.

Recent Action by Do No Harm

In March 2024, House Representative Greg Murphy introduced the EDUCATE Act, which proposes a ban on federal funding for medical schools that “force students or faculty to adopt specific beliefs, discriminate based on race or ethnicity, or have diversity, equity, and inclusion (DEI) offices or any functional equivalent.” DNH founder Dr. Goldfarb supported the Act, saying, “If we fail to stop [DEI ideology in medical schools], we risk a generation of physicians ill-equipped to meet the needs of their patients.” Endorsement of the EDUCATE Act reflects DNH’s fear that medical schools are prioritizing diversity and equity over quality medical training, to the detriment of patient health outcomes. The status of the Act has not changed since its referral to the Committee on Health, Education, Labor, and Pensions.

In June 2024, DNH filed a complaint in federal court, challenging a policy of the American Association of University Women (AAUW) that limited eligibility for its fellowship program to women applicants of ethnic minority groups. The court dismissed the case after AAUW agreed to drop race from criteria for consideration of the fellowship. In its August 2024 statement, AAUW acknowledged that “recent Supreme Court decisions have changed how we must fight for equity”, likely referring to SFFA v. Harvard.

In August 2024, DNH filed a complaint with the U.S. Department of Health and Human Services, Office for Civil Rights (OCR), urging an investigation into the Cleveland Clinic. Since 2019, Cleveland Clinic’s Minority Stroke Program“tailor[ed] treatment and prevention services to Black and Latino patients, including medical referrals and post-stroke care” to address the disparity that “Black men and women are at least two times as likely as white Americans to die from strokes.” DNH alleged that the minority-focused programming violates non-discrimination mandates under Title VI and Section 1557 of the ACA. In September 2024, OCR announced it would investigate the complaint.

Discussion

DNH’s litigation efforts against pro-DEI organizations indicate that any program with DEI initiatives is susceptible to equal protection challenges and discrimination claims. Data, studies, and research in support of one side or the other are frequently met with scrutiny by the opposing side. For example, DNH itself lauded research that “debunked” an influential study on racial concordance and newborn mortality that was often cited by scholars and administrators to justify DEI-conscious admissions at medical schools. The public is adversely affected by apparent discord among medical scholars and health policymakers, with one study attributing a lack of trust in public health agencies to perceptions of political influence within the agency, which risks undermining public health efforts. Further politicization of equity and other healthcare goals frustrates actual progress towards improving health for all.

Updates are slow in this area of health, law, and equity. The ongoing focus and frequency of DNH activity should put organizations on notice to carefully consider existing DEI practices and prepare to either defend or drop diversity-conscious language from any program goals and requirements. Choosing to defend risks the possibility of a court applying the SFFA v. Harvard prohibition on race considerations to this specific healthcare context, or even extending the reach of SFFA v. Harvard to DEI-centered fellowships, research programs, and pipeline programs in every industry, not just healthcare. No court has definitively ruled on the merits of a claim alleging discriminatory diversity-conscious healthcare and medical school programming. Like the AAUW case described above, most cases are dismissed for procedural reasons without judicial comment on discrimination and DEI. However, every lawsuit DNH files against pro-DEI organizations is a step in that direction.

Here in Illinois, DNH has not filed any lawsuits alleging discriminatory practices by healthcare corporations and medical schools. In August 2022, DNH did file an administrative complaint with the Department of Education, Office of Civil Rights (Chicago OCR) against Loyola University Chicago Stritch School of Medicine (Loyola), calling out an internship program that “intended to encourage medical students from racial and ethnic groups that are underrepresented in medicine to consider pursuing a career in academic surgery” in violation of Title VI. Eligibility requirements for the program included the criterion of “African American/Black, Hispanic/Latinx, American Indian/Alaska Native, Native Hawaiian/Pacific Islander”. Chicago OCR dropped its investigation in February 2023 because Loyola removed the contested criterion from its eligibility requirements. Now, the program “invites outstanding students who self-identify as underrepresented in Surgery from a social, economic, or educational perspective” to apply.

In October 2024, DNH Senior Fellow Mark Perry submitted a complaint to Chicago OCR on behalf of DNH against Midwestern University over its dental school scholarship program, which is open to students from “underrepresented minority groups”. According to Perry, the program violates Title VI and is “not legal”. Other than a November 2024 news clip on the DNH site, no further updates are currently available on this matter. Perhaps like Loyola and the AAUW, Midwestern University will eventually rephrase or omit the challenged language from its program requirements.

Other than scholarship programs, minority-focused clinical care and research programs are prime targets for DNH attention. The University of Illinois at Chicago College of Medicine currently runs the Institute for Minority Health Research, which aims to promote research and other interventions to “improve the health of vulnerable minority populations living locally, nationally, and internationally.” DNH could attack the Institute for its apparent catering to “minority populations” over non-minorities, similar to its argument in the Cleveland Clinic investigation.

DNH continues to submit complaints against organizations with DEI practices, condemning claims that minority representation in healthcare contributes to improved patient health outcomes. By pursuing its goal of ending discrimination against non-minorities in healthcare, DNH is polarizing what could be a collaborative discussion on the optimal ways to improve health. “Equity” is now a politicized term rather than a fundamental principle of health and medicine. If any judicial or legislative action legitimizes the goals of DNH and specifically applies SFFA v. Harvard and equal protection to this healthcare context, DEI healthcare and medical programs risk total invalidation —something to keep an eye on in the upcoming years.

Patient privacy is one of the staples of health care, and one that is increasingly posing a major concern to patients. The knowledge that the information is so exclusive and only accessible to a trusted number of people is an essential part of treatment, as it makes patients more willing to share and gives doctors a better understanding of their health. In the wake of the Supreme Court’s ruling in Dobbs vs. Jackson’s Women’s Health Org., there has been growing uncertainty and fear regarding the future of a Constitutional right to privacy, with healthcare being a central issue. More recently, however, patient privacy has faced further challenges: it is being breached through cyberattacks.

In February 2024, Change Healthcare, which is affiliated with UnitedHealth Group, a large scale company with a wide reach across many healthcare sectors across many different sectors of the health-care system, was hacked by a ransomware group. This led to issues with billing. Some providers and hospitals were unable to bill for their services, leading to loss of revenue. Other problems resulting from the cyberattacks including an inability to discharge patients from hospitals and security issues in a world of digitized patient records.

This is not the only example of cyberattacks in the healthcare industry. Also in February 2024, Lurie’s Children’s Hospital in Chicago fell victim to a hack that prohibited hospital staff from accessing patient records and patient-doctor communication. Additionally, the popular ancestry-tracking website 23andMe was hacked in December of 2023. While 23andMe is not necessarily associated with the healthcare industry, 23andMe accounts hold user’s DNA information including family trees and user-health information associated with their accounts, further breaching health privacy.

This raises important questions about how patients can feel safe in continuing to share their information with providers and hospitals. How does a patient know if their information is safe, or will stay safe? Appointments can fall into a routine, where the patient is brought into the exam room to answer questions about themselves and their lifestyle without much thought about what might happen to that information. Some of the questions may seem more related to the appointment than others, but all that information is notated and accessible to the care team in hospital records, more digitally accessible in today’s world than ever before.

There are laws and regulations that physicians must follow in regard to patient privacy, but they may not be enough to instill confidence in patients following the cyberattacks, prevent them from happening, or take the responsibility off of patients’ shoulders. What can patients expect from their healthcare providers, and what do patients have to take upon themselves to protect their medical privacy?

There are a number of authorities that physicians turn to regarding patient privacy, some in the legal field and some not. Under federal law, the Privacy Rule under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) places several restrictions on the use and disclosure of individual patient information and medical records. Therefore, hospitals and hospital employees are legally prohibited from sharing sensitive patient information (with some exceptions involving public health). Additionally, the Privacy Rule under HIPAA sets criminal penalties for those who unlawfully obtain individually identifiable medical records, so hacking aside, it is possible that there are individual criminal punishments in store if the cyber-attackers are caught. However, this does not provide much quell growing concerns about the safety of patient records, as criminal punishment after the fact does not prevent hackers ahead of time – it only provides possible support after the cyberattack takes place if the hackers are caught and prosecuted.

The American Medical Association (AMA) Code of Ethics has policies set in place to protect patient privacy. The AMA determines that doctors are to notify patients if there is a major privacy breach on their medical records. Therefore, in theory, patients should not have to worry about cyberattacks happening completely without their knowledge. However, this also does not do much to protect patient data ahead of time or give personal legal recourse after falling victim to a cyberattack.

Beforehand, professionals say patients can also monitor their privacy themselves. General security protections can help avoid cyberattacks, like complicated passwords and monitoring medical billing activity can keep them aware. This faces the same problems as the other protections and does not actively give any guarantee of safety or legal recourse if a cyberattack does happen.

In all, with medical privacy and rights being called into question after Dobbs, cybersecurity concerns are escalating fears and insecurity in a digital world. The preventative measures available may only affect the extent of the hack and provide the patient with notice if they are targeted, but there are not sufficient measures and protections ahead of time or legal recovery after the fact. After a cyberattack, patients may feel violated and scared, but the ability to bring a successful lawsuit or see a criminal indictment may be slim. Going forward, patient privacy needs to take priority, and the health law field across the board must take more steps to help digital medical records remain protected in a time where some privacy in healthcare faces an uncertain future.

Illinois and its Health Insurance Coverage for Infertility Treatments

By Gina McCammon

Many people ask themselves, “Do I want children?” And this can lead to a series of related questions like, “How many kids do I want?” “How old do I want to be when I start my family?” “Should I be a parent?” For some, biology is on their side, and they don’t have to worry about fertility. Others must grapple with infertility and confront the possibility that even if they answer “yes” to wanting children, it might not happen, at least not without assistance. With today’s medicinal technology, people who face infertility can look to treatments like fertility drugs, intrauterine insemination (IUI), in-vitro fertilization (IVF), and cryopreservation. However, these procedures can come with a high cost. Now the question is not just how much does raising a child cost, but how much will getting pregnant cost? Depending on the state, health insurance can help cover the cost of such treatments. In Illinois, where does health care coverage stand with reproductive health treatments like IUI and IVF?

Ten to fifteen percent of heterosexual couples are diagnosed with infertility following one year of unsuccessfully trying to conceive. If a couple seeks treatment, they undergo testing to determine the source of the problem (refer to Figure 1). Treatment revolves around the source, if the medical professional can detect one. Options usually include cycles of IUI or IVF. IUI is the placement of specially prepared sperm directly in the uterus. IVF is a more complicated set of procedures that places specially prepared embryos in the uterus. Within those treatments is a lengthy list of steps and requirements to receive the actual service like: pre-IVF screening, physician consultations, egg retrieval procedures, fertilization, etc. They are separated by the chosen clinic into Included Services and Excluded Services, meaning the prices depend on the clinic and the presented prices do not allocate a total cost because unaccounted charges like unexpected appointments and tests are omitted. On top of that, a majority of patients require more than one cycle of treatment according to National Library of Medicine.

Figure 1 sourced from: KFF

For one complete cycle of IVF, it can cost anywhere between $10,000 to $15,000, averaging about $12,000. Again, this does not include the Excluded Services and varies on the clinic and jurisdiction. Thus, patients bear the burden of researching clinics that fit their needs and their wallet. But as noted on the Advanced Fertility Center of Chicago website: “Do not equate cost with quality . . .” A clinic may cost less and their success rate may be lower, but that does not necessarily mean that a clinic that costs more has a higher success rate. Infertility treatments are an investment of time and money, and it’s best to make an informed, educated investment.

Twenty-one states have some infertility insurance coverage laws (see Figure 2); Illinois is one of them. Under Illinois’s plan, group health policies that cover more than twenty-five employees and offer pregnancy-related benefits must provide infertility treatment. Specifications include that the covered individual has been unable to get or stay pregnant, or has not had a successful pregnancy by assistance of less costly infertility treatments covered by the health insurance plan. The covered individual has yet to have four completed egg retrieval procedures and, if they have had a live birth from an egg retrieval procedure, they then have two more egg retrieval procedures available under the coverage. All procedures must be performed at medical centers that follow either the American College of Obstetric and Gynecology or the American Fertility Society vitro fertilization standards.

The Illinois state law for infertility insurance is comparatively progressive and works to ensure that persons diagnosed with infertility are not left to pay completely out of pocket. However, the costs of IVF and IUI extend beyond the coverage available with the Excluded Services, the varying prices of the clinics, the normal need of multiple completed cycles of treatment, and the fact that not every person qualifies for coverage.

Figure 2 sourced from: Resolve

The Access to Infertility Treatment and Care Act addresses this problem for all states. The federal legislation works to enforce group health care plans or health insurance issuers who offer group insurance to follow Illinois’s approach to support infertility treatments. What the proposed Act asks of Congress is to acknowledge that infertility is a medical disease recognized by the World Health Organization, the American Society for Reproductive Medicine, and the American Medical Association. Infertility affects a large number of American citizens. The Act also emphasizes how infertility deserves health insurance coverage because it compares to other serious diseases and conditions covered by health insurance. As the legislation states, “The ability to have a family should not be denied to anyone on account of a lack of insurance coverage for medically necessary treatment.”

Impressively, Illinois has infertility coverage that outshines most of the states. If the Access to Infertility Treatment and Care Act is enacted by Congress (and signed into law by the President), Illinois residents will see an increase in coverage for infertility treatments because the law will extend beyond group health insurance policies with at least twenty-five persons. The bill’s passage would cause an inevitable increase in utilization of IUI and IVF treatments and other infertility treatments because they would become more accessible and affordable to a wider population.

The next possible step to increase access to infertility treatment would be to incorporate infertility coverage into Medicaid. Medicaid reaches a wider number of U.S. citizens and would help lower income individuals access infertility treatments. As of 2024, no state Medicaid program covers IUI or IVF. New York has some coverage for diagnostic services and treatment, while eight other states provide diagnostic services, but no state provides comprehensive treatment according to KFF.

The Access to Infertility Treatment and Care Act prevents drastic variation from state to state and, if it is enacted by Congress, offers the possibility of greater access to infertility treatments and a possible expansion of Medicaid coverage. Increasing accessibility means more people can exercise their right to explore the question of “Do I want children?” knowing that resources are available to them, supported by their health insurance, and with less financial burdens.

Zurawski v. State of Texas

Pro-choice advocates and supporters have been concerned about how the health and wellbeing of women will be affected following the decision of Dobbs v. Jackson Women’s Health Organization. Zurawski v. State of Texas, the first lawsuit brought against a state on behalf of individuals denied abortion care since Roe was overturned, highlights the difficulties women and providers have been forced to endure as a result of these legal changes.

Zurawski was filed by the Center for Reproductive Rights and seeks to clarify the scope of Texas’s medical exception under its state abortion bans. Healthcare providers have experienced confusion regarding when abortion can be legally provided due to ambiguous medical exception requirements, and this has severely impacted the lives of women in need of emergency care. The seven original plaintiffs included five women who were denied medically necessary abortion care, and two obstetrician-gynecologists. Since the outset of the case, a growing number of women have been denied abortion care in Texas, and thirteen more women have joined the case.

Current Abortion Laws in Texas

After Dobbs, a trigger ban went into effect in Texas that prohibited providing an abortion and set out civil, criminal, and professional penalties for abortion providers who violate the law. While this abortion ban has narrow exceptions to save the life of a pregnant patient, it is unclear when physicians are allowed to provide care under the medical emergency exception. Despite repeated requests, the state has failed to provide any significant guidance or clarification to doctors on this issue.

The Texas Medical Board proposed new guidance for medical exceptions in 2024, but reproductive rights advocates were disappointed by the lack of specificity the guidance provided and conditions that could qualify. The Center for Reproductive Rights argues that physicians should be allowed to exercise their own good-faith judgment regarding which patients qualify under the medical exception, rather than allowing politicians to make those decisions. Pro-life advocates, however, argue that doctors could willfully misinterpret the laws, giving physicians greater discretion to open the door to medically unnecessary abortions in non-emergency situations.

The Impact on Women

The lead plaintiff, Amanda Zurawski, was a thirty-five year-old resident of Austin, Texas when she was denied a medically necessary abortion. Amanda’s pregnancy had proceeded without incident until she was diagnosed with an “incompetent cervix” at seventeen weeks. Her physician explained that her baby would not survive because her pregnancy was still many weeks before viability. Amanda was sent home, and her water broke that night. She returned to the emergency room and was diagnosed with preterm pre-labor rupture of membranes. All her amniotic fluid had drained, so the emergency room staff kept her overnight in hopes that she would go into labor on her own. By morning, however, she had not gone into labor, her baby still showed cardiac activity, and she had yet to show signs of acute infection.

The hospital informed her that, under Texas’s abortion ban, there was no other medical care that it could provide. Before Dobbs, a patient in Amanda’s condition would have been offered an abortion given these medical circumstances, but hospital workers were unsure if providing an abortion without acute signs of infection would fall within the emergency medical exception under the state’s abortion ban.

Amanda was told that delivery could take hours, days, or weeks, and her doctor urged her to stay within a fifteen-minute radius of a hospital in case her health deteriorated quickly. Furthermore, the closest legal abortion provider was eleven hours away in New Mexico, so she was unable to travel there.

Amanda spent two days at home grieving her inevitable loss and fearing for her own health. On the third day, she went for a check-up at her obstetrician’s office where her vitals were found to still be stable. On the drive back home, Amanda developed chills and started shivering. At home, she had a temperature of 101 degrees and stopped responding to her husband’s questions: She was showing signs of sepsis.

Amanda’s husband took her to the emergency room, and by the time she was admitted, her temperature had peaked at 103.2 degrees. The medical team confirmed that she was septic, administered antibiotics, and finally decided that inducing labor would not violate Texas’s abortion bans. Amanda delivered the child, and her baby passed away.

By that night, Amanda’s fever had relented, but she had developed a secondary infection, chorioamnionitis, and septic shock. This second round of sepsis required a three-day stay in the intensive care unit for treatment. During this time, her family flew in from across the country in fear that it would be the last time they would ever see her.

Though Amanda was eventually discharged and returned home, her suffering continued. The infections caused severe scar tissue to develop in her uterus and on her fallopian tubes. During a procedure to remove the scar tissue, her physicians were able to clear her uterus and one fallopian tube, but the other fallopian tube remains permanently closed. In order for Amanda to become pregnant again, she was advised to undergo in vitro fertilization, which is invasive and provides uncertain success. Other plaintiffs in this case explained they went through similar experiences due to the Texas abortion bans.

Intersection with Katie Cox Decision

On November 28, 2023, the Supreme Court heard oral arguments on the State’s appeal of the district court ruling of Zurawski. At the hearing, Texas Assistant Attorney General Beth Klusmann said that in order to challenge the law, an actively pregnant woman seeking an abortion would have to bring the suit, even though it was impractical to ask a woman facing a medical crisis to come to court.

The Katie Cox case was filed by the Center for Reproductive Rights a week after the November hearing. Ms. Cox volunteered to be the plaintiff they needed to challenge these laws because she was currently experiencing a pregnancy that threatened her health and future fertility.

At the district court hearing, a lawyer for the Texas attorney general’s office argued that Cox did not meet all the elements to qualify for a medical exception, and that the exception would have to be broadened to include Cox’s condition. The judge, however, disagreed, and granted Cox’s motion to allow her to have an abortion. The judge emphasized that Cox desperately wanted to be a parent, and it would be a miscarriage of justice for this law to cause her to lose the ability to have children.

Within hours after the decision, Texas Attorney General Ken Paxton sent a threatening letter to the hospital where Cox’s physician worked and where she agreed to perform Cox’s abortion. He reminded the hospital that they were not protected from felony prosecution or private lawsuit if they allowed the abortion to occur on their property. Paxton also filed a petition asking the Texas Supreme Court to overturn the district court decision. The next day, the Texas Supreme Court put a hold on the ruling permitting Cox’s abortion. Cox remained pregnant until her condition deteriorated over the weekend, while awaiting a decision from the Texas Supreme Court, and she finally had to leave the state to receive an abortion.

The court eventually held that Cox did not qualify for an abortion in Texas under the medical exception because she was not facing a “life-threatening physical condition” as the law required. The question of what conditions and circumstances constitute a “life-threatening physical condition” remains unanswered, but the Zurawski case provides some hope that this question will be answered.

Criminalization

Under Texas law, physicians can face fines of at least $100,000, up to ninety-nine years in prison, and revocation of their state medical licenses if they are found to have violated abortion the state’s abortion laws. The threat of legal action, combined with unclear guidelines on what constitutes a medical exception, are instilling fear and deterring Texas physicians from performing abortions in cases where the procedure is crucial for treating dangerous pregnancy conditions. As a result, women like Amanda and Katie have experienced severe physical harm and mental anguish.

Contrary to the popular stated purpose of fostering life, abortion bans are making it less likely that women who want children will be able to do so safely and survive their pregnancies. Medical professionals are not able to practice properly and fulfill their ethical duties to patients without facing ruinous risks to their liberty and livelihood. This type of criminalization will only cause more harm to pregnant people, already in a vulnerable position. Without a harm reduction framework and policy changes, these harms will likely continue to escalate.

The state should provide clearer guidelines or allow doctors to have total discretion over medically necessary abortions without fear of prosecution to prevent more women from experiencing pregnancy related trauma.

The Zurawski case is currently pending decision from the Texas Supreme Court and will be decided by June of 2024.

With the rapidly changing landscape around women’s reproductive health in the United States, securing safe and effective birth control has become an imperative for American women. There are a handful of options available to them, including, but not limited to, birth control pills, hormonal patches, and femidoms. However, intra-uterine devices (IUDs) are thought to be the most effective long-term birth control option, as they last for three to five years. IUDs can only be inserted or removed by a healthcare practitioner. The IUD insertion procedure causes moderate to severe discomfort and can be especially painful for women who suffer from endometriosis. Even though an IUD insertion is an invasive procedure, there are no standard pain reduction measures in place. The fear of procedural pain could discourage women from using this birth control method, which would prevent them from benefitting from this otherwise safe birth control method.

Currently, the most common form of pain relief offered to women undergoing IUD insertions is ibuprofen, which is administered pre-procedure. However, another approach that has begun to gain traction is the use of parenthetical blocks, which are nerve blocks used during obstetric and gynecologic procedures. In this procedure, the analgesic lidocaine is administered locally, as an alternative to full anesthesia. However, some clinicians fail to raise the use of parenthetical blocks as an option to reduce pain of IUD insertion. Different women experience pain differently, and this may be due to cultural differences, personal experiences, or prior gynecologic conditions, such as endometriosis. As a result, the pain can often be downplayed by clinicians, exacerbating patients’ fear of pain and reducing their trust in their physician.  Complications can arise if a patient is not informed about the level of pain to expect during the procedure, especially if the patient moves during the insertion. If the patient opts for the use of a parenthetical block during their procedure, they must wait for at least seven minutes for it to be effective. The added time can help to reduce a patient’s anxiety levels, making them less likely to move around during the insertion. While other pain management procedures for IUD insertion are yet to be explored, the use of parenthetical blocks like lidocaine suggests that it is promising.

Pain management in birth control has large social implications in the twenty-first century. Research has shown that Black, Hispanic, and Asian communities face more unplanned pregnancies because they either do not use contraceptives at all, or use less effective methods. A 2008 study out of California found that women with public insurance or no insurance were unlikely to use high-efficacy birth control methods like IUDs or birth control pills. The study pointed to another problem which does not appear in statistics: provider-level knowledge about contraception. When comparing anticipated pain on a visual analog scale against different racial groups, African Americans had a median anticipated pain score of 68 compared to White participants, who had a median score of 51. The study suggested that anxiety surrounding the procedure could be reduced if the clinician advocating for and performing the procedure was able to assure patients and speak to its benefits.

With modern medical advances, it is concerning that a standard pain management protocol does not exist across the country for IUD insertion. While parenthetical blocks are a step in the right direction, most studies suggest that counseling in local clinics will help reduce the barriers to IUD use. A good way to do so would be to incorporate conversations about different forms of birth control in school curriculums at the high school level. Furthermore, making patients aware of all their options regarding pain management should be mandatory for clinicians. Physicians should also clearly communicate the extent of pain a patient should anticipate during the procedure. The hope is that like for other gynecological procedures, a standard protocol for IUD insertion will be implemented soon.

Promising a future of stronger protections and more effective treatment for patients with substance use disorders, the U.S. Department of Health and Human Services (HHS) has modified 42 CFR Part 2 (“Part 2”) to better align with the Health Insurance Portability and Accountability Act (HIPAA). Effective as of April 16, 2024, with a two-year deadline for entities subject to the regulations to comply, the new rule allows health care professionals access to necessary, but previously restricted, patient information and enforces new safeguards to patient privacy.

Part 2: 

The the health care records of any patient involved in substance use disorder programs or activities, including treatment, rehabilitation, and research, that is conducted, regulated, or assisted by any department or agency of the United States. Before the newly enacted modifications, privacy regulations under Part 2 were more stringent than those under HIPAA. These stricter regulations were intended to encourage those with a substance use disorder to seek treatment by decreasing the possible fear of legal or discriminatory repercussions that could result from an information disclosure. In practice, this system made it too difficult for providers to provide effective care, as access to important patient information was restricted. This new rule seeks to increase the privacy of substance use disorder patients while giving health care providers the proper tools to best treat patients with behavioral health challenges.

Key Changes:

1. Consent Requirements

While Part 2 previously prohibited substance use disorder patients’ records from being redisclosed (with few exceptions), under the new rule, substance use disorder patients can provide a one-time, general consent for the future uses and disclosures of their information for treatment, payment, and health care operations. This change will ensure that Part 2 health care providers have access to any and all necessary information when treating those with a substance use disorder, allowing the health care practitioner to view the patient’s entire health history and give a more holistic view of their patients.

Additionally, the substance use disorder information in a patient’s medical record received from a Part 2 program will no longer need to be segregated from the rest of the medical record once general consent is granted. While this change could benefit Part 2 programs by lowering the administrative burdens associated with segregating records, Part 2 providers will need to continue segregating records for patients yet to provide general consent.

In following HIPAA’s protections regarding psychotherapy notes, this general consent under the newly modified Part 2 will not include the disclosure of clinician notes kept separate from a patient’s treatment and medical records during substance use disorder counseling. These notes will require specific consent from the patient due to their special nature.

2. Breaches and Penalties 

HHS has also heightened its enforcement authority by replacing previous criminal penalties for Part 2 violations with the same civil and criminal enforcement authorities that apply to HIPAA violations. This change will greatly increase the repercussions for violating the new rule, as previous criminal penalties were rarely enforced by the U.S. Department of Justice.

Furthermore, Part 2 has adopted HIPAA’s Breach Notifications Rule  and the HIPAA Notice of Privacy requirements. These expanded prohibitions on the use and disclosure of patient records in civil, criminal, administrative, and legislative proceedings intend to reduce patient fear and encourage patient privacy.

While Part 2 continues to prohibit the use of substance use disorder patient information from investigative agencies without permission by court order, the new rule has adopted a Safe Harbor provision, which limits civil or criminal liability for investigative agencies that act diligently and follow certain steps if they find that they have received Part 2 records without court order permission.

By specifying and strengthening penalties under Part 2, HHS has taken a proper step in enduring that the information of patients with substance use disorders will be safeguarded.

3. Patient Requests

Included in the many benefits that substance use disorder patients gain from these modifications is the newly granted right to obtain an accounting of disclosures. From now on, each disclosure that is made with the patient’s consent will include a copy of the consent, and/or an explanation of exactly what the consent allows. In addition to this, patients can also request restrictions on some disclosures, including the option to opt out of communications regarding fundraising. In the event of a Part 2 violation, patients now can file a complaint directly with the HHS Secretary and with the Part 2 program.

Providing Part 2 patients with more rights than previously seen before, HHS has given patients with substance use disorders the chance to see a future with more personal autonomy in decision making, and more power in ensuring that their privacy is protected.

What Does This Mean for the Health Care Industry:

Amidst these new modifications to Part 2, health care organizations and providers will need to prepare for change in an effective and safe matter. To do this, proper training and education will be necessary to avoid any accidental breaches of patient privacy. Additionally, health care organizations will need to update their policies and procedures to comply with these new rules while monitoring patient records to ensure that privacy is protected during this training period.

TikTok, the wildly popular video sharing platform, has an algorithm that will occasionally push a video captioned “Pranking my kid!” or “Parenting hack!” No one watching the video will wonder if the kid(s) consented to filming and sharing their life to the Internet. However, people need to start considering the ways in which an influential online identity impacts a child’s mental health and social development.

Social media revolutionized global connection, information delivery, and creative expression. Many would argue that these sites and apps brought immense good to the world, but social media also introduced new problems. Some parents are profiting by turning their children into social media influencers, a practice that could be damaging to youth mental health. It is difficult to regulate any content, let alone content created by parents featuring their own children. However, it is possible to regulate the labor of monetized child influencers, and this is currently the most accessible approach to curbing harms brought by social media to youth mental health.

In May 2023, the U.S. Surgeon General released an Advisory on Social Media and Youth Mental Health. The Advisory compiled research and statistics on the matter and addressed the benefits of social media use among youths, like building positive community, sharing information, and creating space for self-expression. The rest of the Advisory studied the potential harms of social media use. Exposure to extreme, inappropriate, and harmful content can create risks of fatality, physical injury, body image issues, and low-self-esteem. In addition, excessive use of social media can create risks of insomnia, addiction, attention deficits, depression, and anxiety.

Next, the Advisory identified five groups—policymakers, social media companies, researchers, parents, and youths—and provided recommendations to each group on effectuating maximum benefits and minimal harms from social media, and “creat[ing] safer, healthier online environments for children.”

Recent lawsuits have claimed that the lack of safe, healthy online environments for children is a consequence of profit-motivated social media companies prioritizing engagement over safety. Social media companies have been condemned for the addictiveness of their platforms, including the constant, compulsive engagement of children which has led to negative effects on their physical and mental health. The goal of these lawsuits has been to hold these companies accountable for knowingly, intentionally, and deceptively designing algorithms that harmed youth mental health.

Social media companies certainly hold some of the blame for their part in this crisis, but they are hardly the sole perpetrators. Content creators—particularly parents who monetize videos or images of their children—must also be taken seriously for their role in harming youth mental health beyond the screen.

The U.S. Surgeon General’s Advisory recommends that parents mitigate the potential harms of social media by modeling responsible social media behavior to their kids. However, variation of social media use by parents, caretakers, and guardians makes it difficult to determine exactly what it looks like to “model responsible social media behavior” and protect children from harms.

In her 2017 article entitled Sharenting: Children’s Privacy in the Age of Social Media, law professor and children’s privacy expert Stacy Steinberg addresses the social media behaviors of parents who share content of their children online, using the term “sharenting” to describe this behavior. Sharenting serves as an outlet for parents to express their true feelings on the realities of raising children, particularly the hardships brought on by raising children with chronic mental health or developmental needs. By sharing these stories, parents build supportive communities of similarly situated parents and advocate for greater awareness and education around the raising of children with mental and developmental needs.

The dark side of sharenting lies in parental oversharing that invades a child’s privacy, agency, and safety. Some parents go viral for videos of them disciplining their children, for example, where a child is forced to stand in public with a sign describing his misbehavior. These parents are trying to effectuate behavior changes in their child through public shaming. Once shared, some in the online community approve of the disciplinary video, finding the post entertaining and authentic. However, others point out that this kind of online discipline is disrespectful and humiliating to a child. Unlike traditional offline forms of discipline, a viral video leaves a digital footprint beyond the child’s control.

Parents who share content of their kids with little regard for short-term and long-term repercussions may be just as harmful to youth mental health and development as the social media platforms. While litigation has the potential to protect children from the harms dealt by social media companies, it is a less viable option when the offender is a child’s own parents. Other methods must be used to protect children from their parents’ harmful use of social media.

Steinberg suggests a public health model of child protection. The public health model proved effective with the secondhand smoke campaign, where pediatricians warned parents of the dangers of secondhand smoke and encouraged parents to not smoke around children. When parents continued to do so, some state legislatures enacted laws to prohibit the discouraged behavior. The public health model prevails by identifying a crisis and disseminating appropriate warnings and education to the public, with state legislature available as a fallback measure.

Steinberg proposes a draft of the public health model for protection of youth mental health, organized by the best practices to be advised to the public. It mirrors the Advisory, listing educational points for parents like giving their child veto power over online posting, considering the effect that sharing has on the child’s current and future sense of well-being, and sharing anonymously.

For some parents engaged in sharenting, anonymous posting defeats the entire purpose of sharing because anonymity is counterproductive when the goal is to build a career as an influencer.

Melanie Fineman has discussed commercialized sharenting in her 2023 note Honey, I Monetized the Kids: Commercial Sharenting and Protecting the Rights of Consumers and the Internet’s Child Stars. She argues that commercial sharenting has negative effects on child influencers, or “kidfluencers,” and that more support for regulations of commercial sharenting might be earned by reframing the issue as “foster[ing] misleading content online” or “implicat[ing] child labor concerns.”

Sharenting fosters misleading content because parents often instruct their children to talk and react for the camera in ways that prioritize profit and engagement over authenticity. One mother told her Internet-famous twins to “say Oshkosh!” when asked about their favorite brand at an Oshkosh promotional event, though the twins later indicated they did not know what Oshkosh was. Followers on social media were influenced to support Oshkosh because of the twins’ uninformed endorsement, but the endorsement only occurred because Oshkosh incentivized their mother to do so.

Sharenting also implicates child labor concerns. A kidfluencer’s advertisements or sponsorships on social media could bring is so much money that running the account becomes a full-time job and income source for the parent. Content featuring the child becomes the key to the parent’s commercial success, increasing the risk of parents exploiting their children and harming their mental health.

An apt comparison might be child reality TV stars from shows like Toddlers and Tiaras or even Kendall and Kylie Jenner in their earliest years on Keeping up with the Kardashians. Children develop a different sense of self when they’re put in the public eye from a young age, lacking the agency to control their own image. Dissolving the boundary between portrayed character and personal self puts the child in a position to believe he or she is a commodity in the parents’ eyes, always expected to perform in a money-earning, content-worthy manner and creating pressure, stress, and negative mental health outcomes in the child.

Exploiting a child’s presence on social media for the parents’ financial gain is a difficult issue to address due to legal protection of parental rights. A parent’s right to control and shape their child’s life historically outweighs the child’s rights to privacy or autonomy. Thus, the law is unlikely to compel parents to stop sharenting and grant children autonomous control over their own digital footprints. Limitations also exist in regulating what is posted, rather than who is posting. Steinberg notes that a parent’s social media posts may be considered free speech protected by the First Amendment, and therefore, insulated from state regulation. However, states are permitted to regulate the monetization of a child on social media and mitigate damages of commercial sharenting by approaching the matter as a labor issue.

Fineman describes California’s Coogan Law, which ensures that a portion of money earned by child actors be put in a trust until the child turns eighteen. The intent is to protect children from exploitative employment, where earnings are spent by parents and not the child. It returns a degree of control to the child, diminishing the risk of the child believing he or she is a commodity in the parents’ eyes. Coogan’s Law has since been mimicked in other states like New York, New Mexico, Louisiana, and Illinois.

Illinois is the first state in the nation to pass legislation amending its Child Labor Law to include protections for child influencers on social media. The amended act defines vlogs, family, and online platforms, and mandates that profits from online content featuring a child’s name, image, or likeness must be directed to a trust fund account for the child. Children will have the right to sue their parents for failing to direct profits to the trust fund in violation of the amended Child Labor Law.

The amended Illinois act goes into effect on July 1, 2024, so it remains to be seen whether it successfully mitigates the harms to child influencers posed by commercial sharenting. In the meantime, the public health model could serve as a means of protecting the mental health of child influencers by disseminating education to parents and raising awareness of the privacy, health, and safety risks of sharenting.

Višegrad is a town in eastern Bosnia and Herzegovina (Bosnia). As a child, I would frequently visit this town. Višegrad is struggling with protecting its natural aesthetic and the health and well-being of its inhabitants. The Drina River flows through Višegrad, renowned for its emerald color and historical significance. It symbolizes the struggles of the Bosnian war and underscores urgent environmental and public health challenges requiring immediate intervention.

Before delving into the challenges facing Višegrad today, I would be remiss to not mention and acknowledge the struggles of Bosnia that continue to affect many war-torn families today. Bosnia as a whole has been the victim of unspeakable atrocities and genocide. In 1992, Muslims of Višegrad faced a siege; they were deliberately attacked, tortured, and murdered by Serbs. Serbs, individuals from Serbia, inhabit both Serbia and Bosnia. In Serbia, they operated under the direction of Slobodan Milošević, and in Bosnia, they were led by Radovan Karadžić. They actively promoted Serbian nationalism and pursued the creation of a “…Greater Serbia.” Their goal encompassed the “…disappearance of Bosniaks [Bosnians].” They executed this agenda by ordering Serb forces to “…ethnically purify the territory…” of Bosnian Muslims. The International Criminal Tribunal for the Former Yugoslavia investigated some of the crimes that took place in Višegrad, but many attacks and murders remain unprosecuted. They are unlikely to ever be prosecuted, resulting in zero closure for many families of Višegrad.

As aforementioned, the Drina River flows through Višegrad. The town boasts the  Mehmed Paša Sokolović (Sokollu Mehmed Pasha) bridge, designed and built by the Ottoman architect, Mimar Sinan, in the sixteenth century. It spans 179.5 meters in length. Despite being regarded as a historical treasure and even being added to the UNESCO World Heritage List, victims were taken to the bridge and murdered. In 1992, a Višegrad local reported, “They [Serb militiamen] took them [Muslim men] from the trucks and to the railing of the bridges,” and “…they would shoot them,” and throw “…them all into the river.” The war in Bosnia lasted until 1995 when the Dayton Accords were signed. If earlier action had been taken, the staggering loss of 250,000 lives and displacement of over 2 million Bosnians could have been prevented.

You may be asking yourself: How did the war cause the environmental degradation that is still evident today? Is Bosnia taking any action to rebuild its environment? If these questions are on the forefront of your mind, let me pose a simple one: If you witnessed murder and genocide, would rebuilding the green landscape be your top priority? Since scars of the war persist in the region, they have resulted in environmental degradation and even a potential public health crisis.

The Drina River begins at the confluence of the Tara and Piva rivers, flowing for 215 miles until it runs into the Sava river. The Drina serves as a boundary between western Bosnia and eastern Serbia, originating in the northwestern part of Montenegro. Over twenty years ago, individuals built a hydro-power plant with old oil drums to protect the dam from debris that flowed with the river. However, today, after heavy rain and snow, you can nearly find everything under the sun in the Drina. There are reports of finding dead animals, car parts, medical waste, and plastic bottles. The waste can accumulate to around 5,000 cubic meters since garbage flows into Višegrad at least twice a year. The waste piles up behind the barrier that was installed by the hydro-power plant. Consequently, a floating landfill has formed in what was once a picturesque emerald river.

The waste is not generated by the locals of Višegrad, but they are forced to deal with its consequences. The floating landfill results from waste originating in the towns surrounding Višegrad; waste from these surrounding towns flow upstream through the Drina, and accumulate in Višegrad. Despite attempts by workers at the hydro-power plant to clear the waste, Višegrad struggles with an ongoing cycle. Even though they remove and burn 10,000 cubic meters of waste each year in the town’s landfill, the effort has not proven to be highly effective. Fears are materializing not only regarding the river’s ecosystem, but also what the impact will be on locals when the waste is burnt. Burning waste releases toxic chemicals that pollute the air; it is inhaled by both humans and animals, and can also make its way into soil and plants. Ultimately, the toxic chemicals can make its way into the human food chain through crops and livestock.

Fears surrounding the effects on the Drina’s ecosystem are also well-founded. With plastic water bottles being the primary type of waste found in the Drina, many species mistake the waste for food and ingest it; once ingested, it can lead to starvation and/or death. Further, it is no secret that plastic is not fully biodegradable. In fact, the waste can generate even more bacteria and spread disease.

The piled-up waste has drastically harmed the tourism of Višegrad since many tourists make their way to the town to visit the Mehmed Paša Sokolović bridge. It is difficult to market a town that is engulfed with waste that can negatively affect the health of individuals. Since the town heavily relies on outdoor tourism, owners of hotels and restaurants have become devastated and are actively suffering from the sight of the waste.

In March, the Eko Centar Višegrad started taking water samples. However, the problem is long-term, and finding a solution will not be easy nor cheap. It has been proposed that towns upstream of the Drina should implement their own waste collection to prevent the waste from ultimately accumulating in one town, Višegrad.

Although the locals of Višegrad are not currently pursuing any legal actions, it may be worth considering. Whether actions are directed against the government as a whole for failing to implement more effective interventions, or against the surrounding towns that ultimately contribute to the floating landfill, legal action could serve as an effective tool in revitalizing the Drina in Višegrad. However, as Bosnia continues to heal its wounds from the war, it may not be surprising if locals encounter opposition when they express their desire to revitalize a river.

Despite the wounds of the war and the public health challenges that face Bosnia, it continues to strive for healing and renewal. Although locals of Višegrad continue to confront the tragedies of the war whilst facing public health challenges, they take it upon themselves to do it with a commitment of resilience and remembrance. I dream of the moment I can visit an emerald-colored Drina again, but ultimately, a nation whose wounds of the war are healed is something every Bosnian yearns for. Together, we envision a future where peace and prosperity flourish through our green landscape and the Drina River.

Women’s reproductive rights have always been topics of contentious political and legal debates in the United States. And in the wake of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Org.—which held that the federal Constitution does not confer a constitutional right to abortion—reproductive rights will continue to have polarizing political salience for years to come. But there is an inescapable scientific and public health fact that lies at the heart of this debate, one which has no political allegiance: the alarming rates of maternal morbidity and mortality. To alleviate this disturbing issue, a new maternal health care model has been announced. The model has been dubbed the “Transforming Maternal Health Model,” or TMaH Model for short.

Data from the U.S. Centers for Disease Control and Prevention (CDC) speak to the sad state of affairs regarding maternal health in the United States. In 2018, the maternal mortality rate was 17.4 deaths per 100,000 live births. However, as of 2021, the rate had climbed to a shocking 32.9 deaths per 100,000 live births. Compared to other wealthy nations, the United States ranks last when it comes to maternal mortality; a perplexing acknowledgment given the cost and sophistication of the U.S. health care system. Many of these deaths were preventable, of course. According to data from Maternal Mortality Review Committees—”multidisciplinary committees that convene at the state or local level to comprehensively review deaths that occur during or within a year of pregnancy (pregnancy-associated deaths)”—an estimated 80% of pregnancy-related deaths in the United States between 2017 and 2019 were preventable. Disparities between racial and ethnic groups are especially worrisome. For example, based on 2021 data, non-Hispanic Black women had 2.6 times the rate of pregnancy-associated deaths than non-Hispanic White women. Nevertheless, amidst all these horrendous trends and statistics, not all hope is lost.

On December 15, 2023, the U.S. Department for Health and Human Services (HHS), through the Centers for Medicare and Medicaid Services (CMS), introduced the new model for maternal health care. The goal is to combat the maternal health crisis for those enrolled in Medicaid and Children’s Health Insurance Programs. CMS announced that the Biden Administration is focusing on maternal health disparities as well as the improvement in the postpartum health outcomes of mothers and the infants. This model could be a promising start to addressing maternal morbidity and mortality in the United States, however, many issues will require careful attention.

A CMS overview of the Model explains the ten-year plan to address the high rate of negative pregnancy results. The first three years of that plan will be dedicated to pre-implementation, and the remaining seven are dedicated to implementation and proper execution. The complete Model addresses three main pillars: access, quality improvement, and delivery.

Pillar I – Access to care, infrastructure, and workforce capacity: Many mothers do not have proper access to health care, both pre- and postpartum. Proper access for these mothers may include regular visits to doctors, prenatal care (such as prescribing of prenatal vitamins), and postpartum check-ups. In considering the previously discussed statistics, Pillar I displays the proposing parties’ hope that the rate of complications will decrease with the introduction of the proper access to maternal health care, and it may be likened to a gateway to the success of the overall Model.

Pillar II – Quality Improvement and Safety: The TMaH Model will be state-based. Participating State Medicaid Agencies will be collaborating with their local hospitals and health systems to implement the goal-based protocols, which will be “evidence-informed”. In reviewing the quality and safety protocols, which have been labeled “patient safety bundles,” it appears that the key to Pillar II is consistency.

Pillar III – Whole-person care delivery: Pillar III aims to provide customization and specialized care based on the mother and child. Each pregnancy is unique in nature and Pillar III aims to ensure that complications do not occur due to the failure of the health care system.

Data from 2019 provided by the National Library of Medicine offers that 98.4% of women in the United States gave birth in a hospital. Given that a vast majority of births occur in this setting, it makes sense that the procedures may be standardized. However, the mother and child would be at a disservice if these procedures were not tailored to the patients undergoing them.

The TMaH Model seems to show an understanding that a case-by-case approach may not be practical. However, it also demonstrates the desire by federal and state health authorities to utilize the data obtained to address the systemic failures at hand, while providing the specialized care needed for each patient.

Adjusting the procedures to each mother’s unique needs provides them the best possible chance at survival without complication. For example, one birth may require closer attention postpartum due to mother’s hypertension or history of substance use than another. This “closer attention” may take the form of increased postpartum check-ups or more careful prescription of medications for a mother that has known substance abuse issues.

The TMaH Model should be praised for its holistic approach to each pregnancy, keeping firmly in mind the “physical, social, and mental health needs” of the patients. In a time where women are losing control over whether they should be mothers, it is encouraging to see the health system try to provide those that are expecting with accessibility to proper care. One may argue that this overall goal is far-fetched given the increasing rate of complications. While this is a lofty goal, it is far from unattainable. The proposed pillars, timeline, and overall Model are all feasible if they are combined with the proper funding.

Funding opportunities for the TMaH model will be announced to state Medicaid agencies beginning Spring of 2024 and which hopefully provide the Model with the means to enact change.

The recent LePage v. Center for Reproductive Medicine decision by the Supreme Court of Alabama has brought the legal status of embryos to the forefront. The opinion has fueled a renewed interest about the future of in vitro fertilization (IVF). Within days after the ruling, a slew of press detailed the far-reaching implications of this decision for IVF treatment and the future of reproductive autonomy, fetal personhood, and access to care.

The Science:

IVF is a complex and expensive fertility treatment aimed at addressing infertility and preventing the transmission of genetic diseases. The process involves collecting mature eggs, fertilizing them with sperm in a lab, and placing the resulting embryos in the uterus to facilitate pregnancy. Some embryos are cryogenically frozen to preserve these fertilized eggs for future usage. But this is also not a medical procedure and process without risks. According to Mayo Clinic, there is a high risk as some embryo may be destroyed during the freezing process.

The Case:

In December of 2020, a hospital patient at the Mobile Infirmary Medical Center wandered into the Center for Reproductive Medicine in Mobile, Alabama. Having found his way into the reproductive health center via an unsecured door, the patient entered the Center’s cryogenic storage facility and removed several embryos. However, because of the subzero temperatures at which the embryos were stored, the patient’s hands were burned, causing him to drop the embryos on the floor, destroying them. The owners of the destroyed embryos filed suit against the Center and its governing hospital, asserting claims under Alabama’s Wrongful Death of a Minor Act, and, in the alternative, common law negligence claims seeking damages for mental anguish and emotional distress. According to the Alabama Wrongful Death of a Minor Act, the “death of a minor child is caused by the wrongful act, omission, or negligence of any person, persons, or corporation.” The trial court dismissed these claims, in part, finding that “in vitro embryos . . . do not fit within the definition of a ‘person’ or ‘child.’” On appeal, the Supreme Court of Alabama reversed the dismissal and defined the cryogenically stored embryos as children. In LePage v. Center for Reproductive Medicine, the Supreme Court of Alabama ruled that under the state’s Wrongful Death of a Minor Act, the definition of a “child” included the unborn, irrespective of their location (inside or outside a biological uterus).

Implications for IVF:

The decision by the Alabama Supreme Court has not only shaken many in the legal community, with some seeing in it the anti-abortion perspectives given credence in the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, but it has also taken the health care industry by surprise. The implications of this decision are far reaching, both medically and economically.

Since the decision was handed down in February 2024, several IVF treatment centers have postponed performing IVF procedures because they fear that not doing so will place them in legal jeopardy as lawmakers—both in Alabama and elsewhere—scramble to make sense of the ruling.

This ruling by the court is wrong, however. The legal recognition of embryos as children from the time of conception raises concerns regarding the legal status and protection of early pregnancies. This can potentially influence reproductive liberty by limiting medical procedures such as IVF and, more ominously, criminalizing natural processes.

Embryonic development is a complicated process that begins within twenty-four hours of conception, with rapidly proliferating cells that eventually mature into a fetus by the eighth week. At this stage, the zygote/embryo lacks any traits that can be associated with a child. The choice to equate embryos with children simplifies the complexities of early pregnancy. The fetal phase, which begins nine weeks after conception, indicates the stage of uterine expansion (after implantation). Identifying embryos as children weakens this critical difference, raising questions about the legal repercussions for pregnancies in their earliest and most fragile stages.

The ruling’s impact is particularly worrying when considering the frequency of miscarriages and early pregnancy losses. The Cleveland Clinic states that “[b]etween 10% and 20% of all known pregnancies end in miscarriage. Most miscarriages (80%) happen within the first three months of pregnancy (up to 13 weeks of pregnancy).”

In a recent opinion piece by Dr. Gavin E. Jarvis of Cambridge University, he argues that “Complex biologic processes do not work perfectly all of the time, including human reproduction. A recent re-analysis has concluded that pre-implantation embryo loss is approximately 10–40% and that total loss from fertilization to birth is approximately 40–60%.” If the public accepts the LePage decision, would that imply that approximately 40 to 60% of women who experience miscarriages, a natural and common occurrence in early pregnancy, could potentially be considered to have committed wrongful death of a minor? This point raises critical questions about where the legal responsibility would be drawn – would it extend to the doctor performing the IVF or even the mother in the early stages of pregnancy, creating potential liabilities for these parties in cases of pregnancy loss?

Advocating for reproductive rights involves a sophisticated understanding of the early stages of pregnancy as well as a rejection of the idea that embryos are equivalent to infants. Individuals’ rights to make informed decisions about their bodies and fertility require a legal framework that recognizes the intricacies of reproductive biology. If sustained, the LePage decision may violate human liberty and interfere with medical treatments, underscoring the need for a more educated and nuanced approach.

In addition, this decision will also have a significant influence on the economy. The potential economic consequences of a state losing IVF services are noteworthy. According to Forbes, the average cost for an IVF treatment in 2024 is $15,000 to $20,000. If such legal and political impediments to IVF procedures continue, the result could be reduced business activity and downstream impacts on a state’s economy. There’s a concern that in states without criminal penalties for IVF, the average cost might increase significantly, possibly reaching $50,000. There is also the possibility of aggregation principle, affecting interstate commerce.

The potential loss of IVF services by a state because of legal challenges has the potential to cause substantial disruptions to both interstate commerce and the overall national economy. The implementation of such limitations may result in a decrease in commercial operations for healthcare providers, motivating individuals to pursue IVF treatments in alternative states where services are more readily available. This would lead to increased healthcare expenditures outside of the state, which would have a good influence on the economies of those states and a negative impact on the economy of the state that does not provide IVF. Moreover, the escalated expenses associated with IVF might potentially burden insurance systems and government healthcare programs. Healthcare companies may reassess their investments and operations in IVF unfriendly states, resulting in employment cuts, less tax income, and lower economic activity. The combined impact of these elements has the potential to initiate government action or regulation in order to rectify economic disparities and guarantee widespread availability of vital healthcare services across the country.

The LePage decision presents a substantial threat to reproductive rights. The ramifications extend well beyond the courtroom affecting the lives of millions of people navigating the complexities of pregnancy as well as the health care industry.